This case involved an LPR who was convicted of theft in 1997 and again in 2004. DHS claims that theft is a crime involving moral turpitude, thus De Los Reyes is removable for having been convicted of multiple CIMTs. De Los Reyes sought a new trial in the Texas courts pursuant to Padilla claiming that his 2004 trial counsel failed to properly advise him about the consequences of pleading guilty to the second theft offense and he would not have pleaded had he been properly advised. Ex parte De Los Reyes, No. PD-1457-11, slip op. at 3. In an affidavit and in-court testimony, De Los Reyes’s trial attorney agreed. Ex parte De Los Reyes, No. PD-1457-11, slip op. at 4-5.

All was for naught, though, because the Texas Court of Criminal Appeals concluded that Padilla did not apply to De Los Reyes’s convictions. Relying on the U.S. Supreme Court’s recent decision in Chaidez v. United States, 132 S. Ct. 2101 (2012), in which the Court held that Padilla does not apply retroactively on direct review of cases that had become final, the Texas court concluded that “Padilla announced a new rule of constitutional criminal procedure not applicable to cases pending on collateral review.” Ex parte De Los Reyes, No. PD-1457-11, slip op. at 2.

The court did not provide much original analysis. Rather, it borrowed the Chaidez Court’s focus on the fact that the Padilla Court rejected the direct versus collateral consequences distinction when it comes to the Sixth Amendment right to counsel’s application to the immigration consequences of conviction. According to Ex parte De Los Reyes, the key was that “‘prior to asking how the Strickland test applied, Padilla asked whether that test applied.’” Ex parte De Los Reyes, No. PD-1457-11, slip op. at 7.

Interestingly, the court acknowledged that it was not beholden to the Chaidez analysis. Indeed, it explained that state courts are not required to follow the Teague v. Lane, 489 U.S. 288 (1989), retroactively framework used in the federal courts and adopted by many state courts. “We recognize that we could accord retroactive effect to Padilla as a matter of state habeas law,” the court explained. “But we decline to do so. We adhere to the retroactivity analysis in Chaidez and its holding that Padilla does not apply retroactively. This Court follows Teague as a general matter of state habeas practice, and this case does not present us a reason to deviate here.” Ex parte De Los Reyes, No. PD-1457-11, slip op. at 8.

Things just got a lot tougher for Texas attorneys and their clients hoping that Padilla would provide a bit of relief for old convictions. But perhaps all is not lost. In an essay for crImmigration.com, Dawn Seibert of the Immigrant Defense Project listed seven arguments that may remain available after Chaidez:

“1) State courts can apply broader state retroactivity principles to award relief on Padilla PCR motions; 2) there may be an independent state constitutional right to effective assistance of counsel, which is unaffected by Chaidez; 3) Chaidez does not impact the viability of a Padilla claim for a defendant whose conviction was not final (all possibility of appeal exhausted) as of March 31, 2010; 4) Padilla applies in a first post-conviction proceeding, whether federal or state, because such a proceeding is akin to the initial criminal proceeding for purposes of an ineffective assistance claim; 5) Chaidez preserves the right of an immigrant to obtain relief if the immigrant can show that he or she was affirmatively misadvised regarding the immigration consequences of his criminal case; 6) Padilla may continue to apply to state post-conviction cases filed prior to March 31, 2010; and 7) Chaidez does not interfere with the right of an immigrant whose criminal lawyer failed to investigate and advise regarding immigration consequences to present the claim for relief, where appropriate, as one that violated an earlier recognized constitutional duty, such as a duty to negotiate the best possible plea.”

Seibert collaborated on a more detailed practice advisory that attorneys dealing with a conviction that preceded March 31, 2010 (the date Padilla was announced) should review.

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